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BLM Urged to Maintain 'Categorical Exclusions' to Expedite Permitting

A group of industrial natural gas consumers fired off a letter to Interior Secretary Ken Salazar last Wednesday expressing their concern that the agency may restrict or possibly prevent the use of "categorical exclusions" to fast-track oil and gas activity on public lands.

"We are aware that [Interior's] Bureau of Land Management (BLM) is drafting field guidance regarding the use of Section 390 categorical exclusions. These categorical exclusions have been enormously successful at reducing the drilling permit backlogs that we experienced from 2000 to 2005 and resulted in increased natural gas production while maintaining environmental integrity.

"We are concerned that the draft guidance would severely limit or possibly exclude them [categorical restrictions] from use by subjecting them to further Council on Environmental Quality extraordinary circumstances review and limit the scope of when they might be used," wrote Paul N. Cicio, president of the Industrial Energy Consumers of America.

"While we recognize the need to issue new guidance to the field, we would strongly urge that the guidance be limited to ensuring the consistent use and tracking of this permitting tool to enable continued full utilization of this important regulatory provision," he said.

In the Energy Policy Act of 2005 (EPAct), Congress gave the BLM the authority to use categorical exclusions to streamline the environmental analysis process required under the National Environmental Policy Act in an attempt to expedite oil and gas development.

"The legislation created five categorical exclusions (CXs) under Section 390 to limit redundancy and red tape, and to streamline the permitting process. These CXs have been successful in improving the permitting processing while still ensuring important environmental standards are maintained," Cicio said. "We believe it would be a mistake to pursue policies that would make it more expensive or difficult to access critical natural gas resources."

In September the Government Accountability Office (GAO) issued a report finding that BLM's use of Section 390 categorical exclusions "has frequently been out of compliance with both the law and BLM's guidance" (see NGI, Sept. 21, 2009).

At the time it suggested that Congress consider amending the EPAct to clarify Section 390. In addition, the GAO recommended that BLM improve how it implements the exclusions by clarifying agency guidance. Interior concurred with the GAO's recommendations and said that it would take immediate steps to ensure that the use of section 390 categorical exclusions was consistent with EPAct and BLM guidance.

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